Before
the Court is defendant Jose Salazar's second amended
motion for summary judgment. Dkt. 118. A hearing on the
motion was held June 19, 2017. The motion for summary
judgment is denied in part and granted in part.

Background

Plaintiff
Craig Washington brings this action under 42 U.S.C. §
1983, alleging that he was falsely arrested in February 2014
by Houston Police Department Sergeant Jose Salazar, in
violation of rights guaranteed by the Second, Fourth, and
Fourteenth Amendments of the U.S. Constitution.

Washington
was arrested near his home following an incident in which
broken bottles were thrown onto his property from a nearby
night club. Washington, who held a valid concealed handgun
permit at the time, went outside to investigate, carrying his
12-gauge shotgun. He was subsequently arrested and charged
with unlawfully carrying a handgun, a felony offense.
Washington remained in jail overnight, and was released on
bond the next morning. The charges were dismissed one month
later due to insufficient evidence. His shotgun, which had
been confiscated as evidence, was then returned to him.

Defendant
Salazar moves for summary judgment on the basis of qualified
immunity.

Legal
Standards

Summary
judgment is proper if the movant establishes that there is no
genuine issue about any material fact and the law entitles it
to judgment. Fed.R.Civ.P. 56(c). Disputes are
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986). A party moving for summary judgment “must
demonstrate the absence of a genuine issue of material fact,
but need not negate the elements of the nonmovant's
case.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994)(internal citation omitted).

In
determining whether genuine issues of material fact exist,
“factual controversies are construed in the light most
favorable to the nonmovant, but only if both parties have
introduced evidence showing that a controversy exists.”
Lynch Propterties, Inc. v. Potomac Ins. Co. of Ill.,140 F.3d 622, 625 (5th Cir. 1998). “A dispute regarding
a material fact is ‘genuine' if the evidence would
permit a reasonable jury to return a verdict in favor of the
nonmoving party.” Roberson v. Alltel Info.
Servs.,373 F.3d 647, 651 (5th Cir.2004).

Analysis

The doctrine of qualified immunity protects government
officials performing discretionary functions in the realm of
their official duties from liability as well as from suit.
See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.
1994). This doctrine shields officials from civil liability
“so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.'”
Mullenix v. Luna, 136 S.Ct. 305, 38 (2015).
“Put simply, qualified immunity protects ‘all but
the plainly incompetent or those who knowingly violate the
law.” Id. (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).

“Where,
as here, a section 1983 defendant pleads qualified immunity
and shows he is a governmental official whose position
involved the exercise of discretion, the plaintiff then has
the burden ‘to rebut this defense by establishing that
the official's allegedly wrongful conduct violated
clearly established law.'” Pierce v.
Smith, 117 F.3d 866, 871-72 (5th Cir. 1997)(internal
citation omitted). It is undisputed that Sgt. Salazar was
performing discretionary duties within the scope of his
authority. Washington has the burden to show that Sgt.
Salazar violated clearly established precedent.

Second
Amendment

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Second Amendment right to keep and bear arms is fully
applicable to the states by virtue of the Fourteenth
Amendment. McDonald v. City of Chicago, 561 U.S. 742
(2010). However, the Supreme Court noted that Second
Amendment rights are not unlimited. McDonald
reiterated the core Second Amendment right described in
District of Columbia v. Heller, 554 U.S. 570 (2008),
holding that the Fourteenth Amendment incorporates the Second
Amendment right to &ldquo;possess a handgun in the home for
purposes of self-defense.&rdquo; 561 U.S. 742, 791 ...

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